Did One-Sided Legal Advice Lead To The Terrible Copyright Deal For Canadian Universities?

from the it-certainly-doesn't-look-good dept

In the ongoing saga of collection society Access Copyright's negotiations with Canadian universities, one question comes up again and again: why? The Universities of Toronto and Western Ontario, and now the AUCC, which represents schools across the country, have all accepted terrible copyright clearance deals that see fees increasing when they should be going down, and that are full of onerous restrictions and highly questionable rights claims. Multiple observers have pointed out that the universities and the AUCC have an extremely strong fair dealing argument that they could take to the Copyright Board to push for much better terms—but instead they negotiated these lopsided agreements, and the AUCC abandoned its fight at the board. Nothing about these deals seems to be in the best interest of students, educators or schools. So why were they accepted so readily?

There's one glaring problem with the situation that's impossible to ignore, though it has mostly only been mentioned in passing: the lawyers. The AUCC was represented by Glen Bloom, and the University of Toronto was advised by Casey Chisick—both prominent Canadian copyright lawyers with a history of acting for clients who are against generous fair dealing provisions. Both Bloom and Chisick argued for narrow interpretations of fair dealing during a series of important Supreme Court cases last year. Both lawyers have also acted as lobbyists for the entertainment and publishing industries, and Chisick is actively registered as a lobbyist for the Canadian Musical Reproduction Rights Agency. Chisick also expressed his own views on the need for stronger copyright laws two years ago in the Globe & Mail, and this year in the Financial Post.

In short, these are both lawyers who have spent a lot more time working against fair dealing than for it, now acting for clients who badly need a strong fair dealing argument.

This alone is not necessarily so crazy. In law, it's often prudent to get a lawyer who has experience on the other side. Although it may seem like a conflict of interest on the surface, it's probably not a breach of professional ethics. However, even setting aside those questions, the fact remains: U of T and the AUCC, working with these lawyers, failed to assert their fair dealing rights to the degree that many observers think they could and should have. It certainly seems like, for whatever reason, they got bad advice.

Perhaps copyright is not something where lawyers can easily "switch sides". For example, in employment law, firms usually specialize on either the employer or employee side of things, and rarely jump back and forth. If the Access Copyright deals are any indication, copyright may need to be treated the same way: so many of its details (especially fair dealing) are open to interpretation and debate that the philosophical gap between the two sides is huge, and it's difficult if not impossible for a lawyer to effectively argue for both. Moreover, it is a minefield for genuine conflicts of interest: if a lawyer has an ongoing client relationship with a copyright collective, they have a strong incentive not to argue for fair dealing, since any pro-fair-dealing ruling makes their own job harder and reduces their other client's income.

Why did U of T and the AUCC not seek out lawyers who were prepared to make the argument they needed? Why did they accept these terrible deals despite multiple experts telling them they could do better? Why didn't their lawyers tell them that, under the current Supreme Court rulings on fair dealing, they have a powerful argument for lower fees? The whole situation is raising a lot of whys, and students and faculty across the country are starting to want answers. The deadline for universities to indicate their "intention to sign" the AUCC model license has passed was pushed to May 15th, but it's still not clear what that even means, and with resistance to the agreement growing, this deal might not be as done as Access Copyright and the AUCC want it to be.

Re: Re:

That may be true, but Canada supplied 2,157 barrels per day while the US produced 5,672 barrels per day in 2011. That's a significant number, without a doubt, but our single largest supplier? That's ourselves.

Re:

if it wasn't for the effect it's gonna have on others, i would say 'serve you rights' to those that signed, or 'what incentive were you given to sign for this?' as there is more at stake, those that did the deal without checking other options first should be sacked. with finances being reduced, the last thing any organisation wants is to spend more than necessary for the same return!

What do they teach?

A silly question, please don't shoot me down in flames for asking, but ...

Don't these universities teach any law at all, not even enough to understand the questions they needed to ask their supposed impartial lawyers?

Another, perhaps even dumber question ...

Don't they have internet access at these universities? The first thing I would have done in this kind of situation is to search online for information about the issues and to see what my rights might actually be.

Re: What do they teach?

Universities are run by bureaucrats and administrators, not the professors. So even if there was a Law department with Law professors, they wouldn't have been consulted.

Administrators, for the most part, are completely clueless with the interwebs and trust their advisors - in this case the lawyer.
So it's hardly a surprise that they accepted the word of the lawyer as gospel truth.

Re: What do they teach?

As someone involved with the supposed consulting group for one of these Universities, I can tell you that there were 2 academics in the group with specialties in Copyright in addition to the University lawyer (no specialization). We strongly opposed the tarriff. Both grad and undergrad societies sent letters stating the entire student body had voted to opt out. Problem is, the license was signed anyway- WITHOUT our knowledge. It was done against everyone's publicly stated wishes, completely behind closed doors.

Wall Street firms told their own clients to invest in funds they knew were a bad investment, and that they themselves were betting on to fail! And we all know how Wall Street was 'punished' by being given a massive $800 billion dollar bailout by Washington, making them even richer!

Intent to sign deadline

The deadline to state intent to sign was pushed to May 15. I would expect to see fanfare from Access Copyright shortly after that date, claiming to have support of so many institutions... who have only stated their intent in order to be given more time to properly assess their options when it comes to this deal. The downright threats from Access Copyright and the lack of any kind of support from AUCC make it sound like there aren't any options; that there is no choice but to sign.

"Hi, I'm Mike Masnick. I'm a weirdo zealot about copyright. I'm obsessed with it and that has essentially ruined my life as a result. Thank god for Google and their effort to make pilfering the works of others as a business model, cuz otherwise I'd be even more fucked than I already am."

Getting lawyers with a history of representing opposing viewpoints in court is no big deal. Getting lawyers who are registered as *lobbyists* for opposing viewpoints is kind of a bad idea, in my opinion.

Did One-Sided Legal Advice Lead To The Terrible Copyright Deal For Canadian Universities?

I think knowledge of copyright in practice rather than theory, how the law actually works, the importance of paying writers the royalties they deserve, a true understanding of the cost savings involved in blanket licensing, an aversion to panic-merchant theorizing, verifiable connection to reality... y'know, those kinds of things, convinced the AUCC to sign their most excellent deal.

But you folks keep attacking individuals, implying dark motives, and misunderstanding copyright all you want. That seems to work for you.